Wednesday, 12 December 2012

TRIPPING on IP Technical Assistance: Part II

In part I of this two-part piece, this Leo picked excerpts from Article 67 of TRIPS and then set out a series of questions scrutinising the effectiveness of the provision in ensuring holistic IP technical assistance from developed-country WTO Members (DCs) to developing and least-developed country WTO Members (D/LDCs). This investigation continues here in part II where we consider phrase (B) - which this Leo has split into two strands:

...as well as on the prevention of their abuse,.....

and shall include support regarding the establishment or reinforcement of domestic offices and agencies relevant to these matters].

The first strand - including its foregoing in bold red -tells this Leo that DCs are not just required to assist D/LDCs become TRIPS-compliant, but shall also support them utilise the flexibilities within TRIPS. In particular, it states that DCs ought to assist D/LDCs in framing IP laws and policies which will withstand or deter potential abuse of IPRs. This Leo further reads the second strand as placing a duty on DCs to play a role in the establishment and/or the sustainability of domestic IP offices and agencies in D/LDCs. So, the curiosity is as follows:

(1)Why would any IP enthusiast easily believe that a DC, such as the USA, would want to assist D/LDCs get around their TRIPS commitment or ensure they fully apply its flexibilities? (Afro Leo is thinking that the opposite is the case - a DC is more likely to push for TRIPS-plus);

(2)If the mandate in Article 67 is for the advancement of domestic IP offices in D/LDCs, why is there also the increasing links and support through regional organisations such as ARIPO and potentially coming soon, to the much criticised over-arching PAIPO? (Digressing, Afro Leo does not even feel that the regional organisations (ARIPO and OAPI)are supported well enough. If you consider their status in Africa and compare that to their websites, one would expect their websites to look like either of these: OHIM, BOIP or EPO);

(3)Is it fair and reasonable (cheeky, says Afro Leo) to interpret “reinforcement of domestic IP offices” as not just meaning, 'the training of personnel and the like', but to also include equipping the IP offices across Africa for 21st century IP administration and practice? (Afro Leo notes that there are countries in Africa (e.g. here and here) whose houses are in order in this regard - as things appear online); and

(4) Which sort of "agencies relevant.." are we referring to here? (To Afro Leo, "agencies" resonates as 'IP enforcement').

Conclusion

Taking parts I and II together, it seems to me that a proper debate is due on the effectiveness and benefits of Article 67 as this specific area receives little or no attention in the midst of the often heated arguments on the form and/or existence of IP laws in D/LDCs.

Before drawing my conclusions, it is worth pointing out that the level of economic development, resources and IP activities across Africa varies and hence the need for a tailored approach in any technical assistance rendered. Furthermore, and although not the focus here, this Leo does not lose sight of the various IP technical assistance projects undertaken by WIPO including the IP information service in collaboration with some DCs. (Afro Leo says, the expectation that in a 21st century, all IP registries across Africa should have an online presence is a plausible one. He feels that the same effort put in by DCs to assist African countries draft and/or enforce the sort of IP laws and policies, by will or pressure, on a par with theirs should also be put towards making sure that the IP offices in these countries operate online for benefit of interested parties within or outside a given country.)

Perhaps, it would be too costly for a DC to provide the IP office of an African country (or even ARIPO or OAPI) with a fully functioning database-integrated website. As this Leo found out, in 2008, the UK Intellectual Property Office (UK IPO) rebuilt its website at a cost of £362,000, and currently maintains it at an annual cost of £258,000. Although one would not expect those two figures to be the same in a D/LDC, in some way, it paints a picture as to why most African countries – especially, the less well-off ones - would be reluctant to commit sparse funds to a website slightly comparable to that of the UK IPO. (Afro Leo knows that some African countries are resource-rich and may well afford it, but wonders whether the income they generate are actually used to solve their critical problems. He also feels that IP is, probably, at the bottom of the list of priorities for most African countries though some are beginning to take serious notice of it recently)

The only thing that is clear to this Leo about Article 67 is that IP technical assistance to D/LDCs is not exclusive to multi-lateral institutions such as the World Intellectual Property Organisation (WIPO). Having broken Article 67 into bite-sizes, he remains sceptical - hypothetically speaking - because it feels as if DCs are comfortable and busy performing well on those excerpts highlighted in bold red in part I (e.g. training D/LDCs to enact and enforce IP laws and policies - sometimes strict ones); while there appears to be little appetite to seriously work on phrase (B)above - a part which may well be more advantageous to D/LDCs. This doubt is further exacerbated because there are no clear repercussions if DCs fail to act in accordance with the spirit and letter of Article 67.

Therefore, this Leo is left to conclude that Article 67 is not an obligation in its strict sense; rather, a gratuitous interest-driven and one-sided commitment to get everyone fully on-board (Just because a great majority of African IP offices lack an online presence does not mean Article 67 is not fit for purpose or does not work, Afro Leo warns. But he also holds similar views that Article 67 is based on a DC's own terms). The hope is that one day, readers would be able to visit the website of any IP office in Africa to conduct searches for prior art or earlier registered trade marks as well as get relevant IP news update. DCs can make this day come sooner rather than much later.

Maybe, the problem does not lie within Article 67 after all; what do readers think.

To search the records of technical assistance by developed countries, see here (This year alone, developed-country WTO members such as European Union (including its individual Member States), Canada, United States, Australia, Norway, Switzerland, Japan and New Zealand have all offered assistance and cooperation to D/LDCs. Most of these were in the form of training, workshops and seminars geared towards enforcement of IPRs)